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The European Commission promised to modernise copyright, but instead of creating a well-functioning legal framework addressing the concerns of creators and end-users it proposes to protect old business models by creating what it claims to be a ‘well-functioning marketplace’. To do so, the EC creates ‘RoboCopyright’, compelling intermediaries hosting user-uploaded content to implement content filtering technologies and handing over the content policing to the right holders. Our message to the EC: Stop ‘RoboCopyright’ and ancillary copyright, and start to focus on users and creators.

Caroline De Cock, Copyright for Creativity (C4C) Coordinator

Following the publication of the European Commission’s (EC) proposal for a Directive on ‘Copyright in the Digital Single Market’, the Copyright for Creativity (C4C) coalition would like to share its outcry about the EC’s lack of ambition and the missed opportunity of this copyright review. Our 3 major concerns are – detailed overview below:

Not addressing the promised objective: The EC’s reform proposal starts from the outset that is more important to achieve ‘a well-functioning marketplace for copyright’, rather than creating a well-functioning legal framework for copyright that address the concerns of citizens and end-users, and enables a digital single market.

The introduction of ‘RoboCopyright’: Ignoring any threats to users’ fundamental freedoms, the EC seems to consider algorithms by private companies should filter European citizens’ content on the Internet. (check out ‘RoboCopyright 2.0‘)

Blatant disregard of citizens’ voices: The EC has shrugged off the input to the consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’; which gave clear indications of what Europeans wanted (results). Instead, the EC (1) proposes an EU-wide retroactive ancillary copyright lasting 20 years, and (2) ignored freedom of panorama, save for a footnote in the Impact Assessment.

The EC claims it listens to the concerns of citizens and takes them into account.

Why not on copyright?

More Detailed Overview

Topic

Subtopic

Copyright for Creativity’s (C4C) Position

Missing elements

C4C regrets that the Commission does not seem to be considering the following elements:

updates to the other exceptions (many of which are drafted in obsolete terms) and also making them mandatory (Recital 5);

an exception for freedom of panorama;

an exception for remote access to library catalogues; and,

the introduction of a flexible norm complementing the list of exceptions.

C4C is deeply worried about the Commission moving forward with the introduction of ancillary copyright at EU level (Article 11– Recitals 31-35). We have concerns regarding the underlying logic of such an approach where, against a perceived failure from a commercial nature, the proposed remedy is one that creates new rights under the ‘copyright’ umbrella as opposed to a more ‘ex post’ approach. See our infographic.

In short:

The right itself should not be introduced, as it does not deliver positive results (see its failure in Spain and Germany);

Article 11 §4: A retroactive right for 20 years on news items is simply absurd and disproportionate in light of the economic reality;

Considering that hypothetically throwing more money at news publishers will improve journalistic quality seems a bit of a shortcut at best; and,

Making new companies subsidise an old business model is not known to be an incentive for the traditional players to adapt to the new digital realities.

Rights in publications – Claims to fair compensation

C4C has reservations about the Commission’s reasoning that publishers should be able to claim a share of the compensation for uses under exceptions (Article 12 – Recital 36).

In short:

this seems to contradict the judgement of the Court of Justice of the European Union (CJEU) in the Reprobel case (C-572/13). The CJEU confirmed that the rationale of the fair compensation requirement is intended to compensate for the harm suffered by right holders, and concluded that publishers are not subject to any harm by, in this case, the reprography and private copying exception.

As a result, this provision does not create benefits for creators, which are ‘the forgotten’ stakeholders in this review (except for minimal contractual safeguards, left at the mercy of Member States).

Certain uses of protected content by online services

C4C considers that the Commission’s intentions in this area go beyond the scope of a copyright review, as they fundamentally affect both the e-Commerce Directive and the IPR Enforcement Directive (Article 13 – Recitals 37-39).

In short:

Article 13 & Recital 38: The text considerably expands the definition of communication to the public to any act of uploading and sharing through online service providers; and,

C4C fears that the Commission intentions will force all intermediaries dealing with user uploaded content, including cloud services, Wikimedia, etc., to be compelled to:

negotiate licences with right holders; and,

implement content filtering technologies. We wonder how this can be achieved without a reform of Article 3 of the InfoSoc Directive (see here), Articles 14 and 15 of the e-Commerce Directive, and Article 3 of the IPR Enforcement Directive.

We encourage you to read this analysis by Martin Husovec from Tilburg University, and see also our infographic.

Measures to adapt exceptions and limitations to the digital and cross-border

Text and data mining (TDM)

Although having an exception on text and data mining is positive, some elements are worrisome (Article 3 – Recitals 8-13).

In short:

Article 3 §1 & Recital 11: the beneficiaries of a text and data mining exception should not be limited to ‘research organisations’, to avoid crippling any opportunities for start-ups and individual researchers in this area; and,

Article 3 §3 & Recital 12: allowing academic publishers to introduce random measures to protect the ‘security and integrity’ of their network could allow them to arbitrarily block access for researchers trying to conduct text and data mining. Safeguards in line with those put in place in the context of ‘traffic management’ by telecom operators could be considered (see Article 3 § 3 of the Telecoms Single Market Regulation [EU 2015/2120]).

C4C furthermore welcomes the Commission’s intention to make this a mandatory exception and to not limit it to non-commercial uses only. See our infographic.

Use of works and other subject-matters in digital and cross-border teaching activities

C4C welcomes a mandatory exception in this area (Article 4 – Recitals 14-17), but worries about the Commission’s plan to allow Member States to ignore and by-pass this exception through licensing schemes (Article 4 §2).

Preservation of cultural heritage

C4C considers that the Commission’s intention to update the exception on preservation of cultural heritage (Article 5 – Recitals 18-22) is not going beyond what was already decided by the Court of Justice of the European Union in the Ulmer case (C-117/13). Furthermore, the Commission seems to only enable preservation of objects permanently in the collection. This could create interpretation issues as regard online material and does not recognise the collaboration efforts between cultural heritage institutions to share artworks to ensure an as wide as possible public can enjoy it. We do applaud the fact that the Commission wants to make this a mandatory exception.

Fair remuneration in contracts of authors and performers

Fair remuneration in contracts of authors and performers

C4C applauds that the Commission steps up to ensure more transparency and appropriate remuneration for creators (Title IV Chapter 3 – Recitals 40-43).

However, this needs to be ensured throughout the whole value chain in the various creative industries. We stress the need to focus on the whole of the value chain, because the Commission has focused on the so-called ‘value-gap’ (Recitals 37-39) in reference to online services, without acknowledging that creators often do not get a fair deal form their recording companies or publishing house in the first place (see here).

C4C welcomes the fact that Commission considers collective agreements for digitisation and dissemination of out of commerce works (Article 7-9 – Recitals 23-28). The Commission’s intention seems to model this on the Scandinavian “Extended Collective Licensing” (ECL) scheme, allowing collecting societies to assign non-exclusive licenses for non-commercial use of out of commerce works, even for non-members. This would enable works to be shared and accessed across the EU.